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Article 2/2025

What are some of the important principles governing a charge of intoxication (i e being under the influence of alcohol) as opposed to having tested positive for alcohol (as dealt with in article 1/2024)?

To what extent is there currently a similar jurisdiction so applicable to answering the above question in respect of the symptoms of cannabis and its effects?

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  • The LAC, in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC), stated that:
    •  ‘The difficulty with proving the charge brought against the respondent is that intoxication is a matter of degree. The respondent would only be “under the influence of alcohol” if he was no longer able to perform the tasks entrusted to him, and particularly the driving of a heavy vehicle, with the skill expected of a sober person.Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task.’
  • In cases where alcohol intoxication has been suspected, a breathalyser is not always conclusive on its own to justify dismissal (Palaborwa Mining Company Ltd v Cheetham and Others [2007] ZALAC 11; (2008) 29 ILJ 306 (LAC); [2008] 6 BLLR 553 (LAC); Mondi Paper Co v Dlamini [1996] 9 BLLR 1109 (LAC)).
  • Instead, it could be coupled with other evidence, such as the employee having slurred speech, impaired coordination, loudness and all the other known symptoms of alcohol intoxication (National Union of Metal Workers of South Africa obo Cloete v Trentyre (Pty) Ltd and Others [2008] ZALAC 18; [2016] JOL 35706 (LAC) (Trentyre); XStrata Coal South Africa v Commission for Conciliation Mediation And Arbitration and Others [2014] ZALCJHB 14).
  • A similar jurisprudence on the known symptoms of cannabis and its effects, compared to the duties associated with the nature of the job, should be allowed to develop. All this would depend – in addition to the test results (where available) – on the facts of each case and eyewitness accounts. This was not to say that test results, on their own, are always insufficient, but that the nature of the job determined the amount of evidence required to justify dismissal (Jet Demolition (Pty) Ltd v AMCU obo Sehoshe and Others [2022] ZALCJHB 55, at paragraph [52]).
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?